The issues in this case are very similar to the issues which were involved in News Syndicate in which Your Honors have just heard argued.

In November of 1957, after some years of efforts to obtain a satisfactory agreement, the members of the Worcester and Haverhill Typographical Unions went on strike.

At the time of the strike, the parties were barred on a great many issues concerning most of which no legal issue was ever raised.

After charges have been filed by the publishers and after the usual proceedings before the Board, the Board found that the commands of the union were unlawful in five respects.

They held unlawful a Jurisdiction Clause what the Board characterized as the apprenticeship and priority systems of the agreement, the so-called General Laws Clause and the “foreman clauses” of the agreement.

The Board entered its usual cease-and-desist orders and directed the usual affirmative action.

And on petition to review and cross petitions to enforce, the Court of Appeals for the First Circuit set aside the Board's order insofar as it was found unlawful the jurisdiction clause and the apprenticeship and priority systems.

But the court below did sustain the Board involving illegal or General Laws Clause and the “foreman clause”.

The Board did not seek certiorari with respect to the first three issues.

The only two issues before the Court therefore or the two principle issues before the Court relate to the validity of the General Laws Clause and the “foreman clauses.”

Before getting to these specific clauses, I would like to sketch before Your Honors a little background.

In 1957, the Board had before it a report of a trial examiner which found that a contract substantially similar to the contract proposals made by the unions here was lawful and that the practices under that contract had been lawful.

The Board at that time took no issue with this holding of the trial examiner.

In 1950 -- that was in 1957.

In 1959, the Board decided matter of Honolulu Star Bulletin.

In that case, the Board did not decide that the practice is under a substantially identical agreement were unlawful.

It did, however, set the contract aside as being an unlawful close chart.

Now in that case, the contract contained on its face a provision which said that the term journeyman and apprentice has used herein, that is in the agreement, shall not be taken to refer exclusively to members of the International Typographical Union.

Now manifestly, the parties are not required as a condition of maintaining lawful agreements to negative on their face and intention to discriminate.

This would be tantamount to saying that every commercial agreement violates the antitrust acts which fails to state on its face that the parties do not intend to violate the Sherman and Clayton Antitrust Acts.

But in this case, the parties had taken this additional step which we think is not required by the statute.

There was a showing that a substantial number of nonunion men had actually been hired.

The Board nonetheless treated it as a closed-shop agreement.

And the case is instructive, I suggest, is demonstrating the way in which the Board is prepared to toss the epithet closed-shop around as a substitute for evidence and findings.

The Court of Appeals for the District of Columbia had no trouble with the case.

They found the contract to be lawful on its face.

The Board did not seek certiorari.

And as Your Honors have just heard after the most careful scrutiny, the Court of Appeals for the Second Circuit in News Syndicate found that contracts which have been in effect for some years substantially identical with the proposals herein made by the local unions, had been lawfully administered.

Now, I stress that this is a completely random sample.

These cases came up only by virtue of the fact that at these particular places, some employees had happened to file charges.

And I suggest to Your Honors further that these cases are dispositive of this case.

Because if there is a rule of law that is well said, it is that if it can be shown that a contract can be lawfully administered as these three cases demonstrate.

It is to be presume that it will be lawfully administered unless the contrary clearly appears and in this case, there is nothing whatsoever to the contract.

The local negotiators at all times insisted that their contract proposals were lawful and that they intended that they'd be lawfully applied.

The significant difference obviously between these three cases and the case that bar here is that here we deal with proposals made in the course of collective negotiations rather than with agreements which had been in effect for some years so that actual practices under those agreements could be reviewed.

The Board and the court below were therefore constrained to indulge in some extremely freewill in speculation as to how these contract proposals might have been lawfully -- unlawfully applied if they had been found acceptable by the publishers.

And for present purposes, I am concerned only with their speculations with respect to the General Laws Clause and the foreman clause.

The General Laws Clause reads that the General Laws would be ITU in effect at the time of execution of this agreement, not in conflict with federal or state law shall govern relations between the parties on those subjects concerning which no provision is made on the contract.

Now, it is not disputed that certain General Laws of the ITU contemplate closed-shop conditions.

It is equally undisputed that each of those laws has a valid field of application in enterprises not affecting interstate commerce of which there are many in the printing industry and in Cannon where the ITU has many local unions.

And it is --

Justice Charles E. Whittaker: (Inaudible)

Mr. Gerhard P. Van Arkel: Pardon, Your Honor.

Justice Charles E. Whittaker: (Inaudible) that all use the same form?

Mr. Gerhard P. Van Arkel: I -- I would say not, Your Honor.

I've seen agreements in Canada which do not contain this language not in conflict with federal or state law.

It is not disputed that that phrase “not in conflict with federal or state law” was introduced into this traditional clause immediately after passage of the Taft-Hartley Act.

And the testimony in this case is entirely clear that it was designed to have precisely the effect which one would gather from its language.

Namely, to exclude from the agreement any general law in circumstances in which its enforcement would lead to a violation of federal law.

Now the finding of the -- or I should add further that in 1951, the General Laws themselves were amended to add Article 14 which provides that the general -- that in circumstances in which the enforcement or observance of any General Law would lead to a violation of federal or state law, such General Law is suspended.

And though this Clause has been in use since passage of the Taft-Hartley Act, the Board has never yet alleged or proved that any general law has, in fact, ever been unlawfully applied despite the amount of litigation that there has been involving these agreements.

Now, in finding of the trial examiner which was adopted by the Board was that there is no evidence in the record remotely suggesting that the respondent unions were not seeking to incorporate in their agreement all of the General Laws including those found illegal herein.

That is to say those which would provide for closed-shop conditions.

The finding of a trial examiner thus directly at variance with the clear language of the clause and with the testimony explaining its purpose for inclusion in the agreement.

Now an essential qualification to become a printer is that one be able to read.

And if as I think we can and must, we assume a higher degree of literacy on the part of employees in this industry that is represented by this finding which the Board adopted.

This case will give Your Honors a little trouble.

Needless to say, the court below did not adopt so palpably erroneous finding that went almost as far, however, by saying that this proviso obviously designed to exclude language from the agreement was in fact language of incorporation by reference.

Chief Judge Prettyman on a Honolulu Star-Bulletin gave we think the clear answer to this.

He said in speaking of this clause that it clearly provided that the General Laws of the union in conflict with either federal law or the contract itself were not included in the contract.

A closed-shop provision would have been in conflict with the federal law and also in conflict with Section 2 (a) of the contract.

Any such provision in the General Laws was accepted from inclusion in the contract.

We do not see how language could have been clearer.

Now, I suggest to Your Honors that this is not only the lawyer like but the common sense way of reading the language of this clause.

The real thrust of the Board's opinion in this case and of the court below has been the assertion that because employees might be in -- uncertain as to which of the General Laws were included and which were not included, that this uncertainty is the equivalent is illegality.

Now, Your Honors, in the case last year, Steel Workers case, developed at great length the reasons why collective agreements of necessity contained large areas of uncertainty and why provisions for arbitrating them are therefore essential.

I put it to Your Honors in all seriousness that nothing could be more destructive of the institution of collective bargaining and nothing could be more productive of industrial strife than the adoption of the rule here put forward by the Board.

If the parties to collective agreements are required to draft them with such specificity that not only the Board and not only the courts, but a group of unidentified, illiterate, suspicious employees must be satisfied that their rights can under no circumstances be infringed under such an agreement, then collective bargaining becomes a manifest impossibility and when on top of that, when the penalty for leaving any lingering uncertainty on the agreement is the application of the Brown-Olds remedy as the Board has proposed in these cases.

Collective bargaining then, becomes a means of soliciting a fine unless the parties can anticipate all the myriad situations which may arise under the agreement, may supply answers, so clearly lawful that no employee can possibly have any doubts that this is the correct answer.

Chief Judge Prettyman on this and Honolulu Star-Bulletin said some -- used language which we think is fundamentally important not only to this case but to all collective bargaining he said.

The Board says that since the contract mentions the rules of the union, employees would have the impression that the rules were incorporated in there entirely and would not differentiate those contrary to law or to the contrary.

From that premise, the Board reasons that the contract is per se a closed-shop contract.

This conclusion is a complete known sacred.

An erroneous impression of plain terms does not change the meaning of the plain terms.

Furthermore, assumptions that employees will not understand a lawful contract cannot be the basis for holding the contract illegal.

What would be the justification for emphatic insistence upon formal collective bargaining as to terms of employment if the conduct of the parties thereafter is to be judged by speculative, uninformed impressions of those terms instead of by the terms themselves has hammered out at the negotiation table.

I put it to Your Honor that this is the way a lawyer -- this is the lawyer like approach to this problem.

Indeed, in its brief here, the Board appears to concede that lawyers and judges would read this agreement to be lawful.

I will not conceal my hope that at least five judges and preferably nine, will read it to be lawful.

I repeat.

That is impossible for the parties to meet the standard which they say collective bargaining requires if agreements are to be lawful.

I turn them to the speculations concerning the foreman clauses in this agreement.

The clauses as proposed below, proposed in the negotiations read as follows.

The operation authority hiring for and control of each compulsory rule shall be vested exclusively in the office through its representative the foreman who shall be a member of the union.

The union shall not discipline the foreman for carrying out written instructions of the publisher or his representatives authorized by this agreement.

The holding of the Board on this issue was that these clauses, well in effect “create a closed-shop” because they say it is to be presumed that the foreman would consider himself bound by the rules of the union calling for a closed-shop agreement and that these are therefore illegal.

We say there are the most compelling reasons for making the directly opposite presumption.

But first and most important and we suggest dispositive is the presumption that the citizen will obey the law since the statute forbids discrimination higher, it is to be presumed that the foreman, whoever he may be, union or nonunion, would place the statute above any union rules.

Second with almost equal importance is the agreement itself.

The agreement as proposed by these local unions would have setup standards that were higher which were completely none discriminatory, which were based solely on competence and experience, which had no relation whatsoever to union membership or non-membership.

The laws clause which I read to Your Honors makes it entirely clear that the contract prevails over any inconsistent general law, so if the publishers had accepted these proposals, the foreman would have been told directly on the face of the agreement by which of course he would be bound but he was not expected to follow discriminatory methods higher.

We have set forth in our brief the four separate occasions and methods by which the ITU has notified those of its members who are foreman that they are not expected to discriminate them higher.

The Board seems to fill that four times is not enough whether its 6', 8', 10' would or would not be, we don't know.

Apparently, they consider such a declaration effective only if it is compelled by a Board order.

The most significant aspect of the Board's brief on this problem is that they failed even to mention the amendments to the Act in 1947 in Sections 23 -- 211 and 14 (a) by which the Congress made it entirely clear that foremen were no longer employees under the Act, that the employer was free to discriminate as he like with respect to the union membership or nonmembership of his foremen.

The Congress at that time made it entirely plain that a requirement that a foreman be a union member was not discrimination within the meaning of the Act and it is therefore irrelevant as the court below found that the effect of this clause might be to encourage aspirins for the foreman job to join the union.

Since in Radio Officers, Your Honors made it entirely clear that it is not enough to show encouragement but that this encouragement must be achieved by discrimination.

And this requirement is not discrimination within the meaning of Section 8 (a) (3).

Indeed, if I may digress for a moment, Your Honors, I suggest that in all of the cases presently before Your Honor -- Your Honors, a misreading by the Board of Radio Officers lies at the heart of all the difficulties.

They have attempted to read out of the statute the words by the discrimination to find that anything which encourages union membership is per se a violation of the Act and that therefore there is no longer any need to find discrimination.

Your Honors made it entirely clear in Radio Officers and the whole history of the Act bears it out, that the first essential is to find discrimination and if that is lacking then the question of discouragement or encouragement of union membership does not arise.

For these reasons, we say that those clauses were lawful.

I will leave to our brief the question whether or not the Board and the court below properly held that both the International Typographical Union and the local unions could at one in the same time be the exclusive representative of these particular employees.

In order to say a word about Board's order in this case.

The Board's order here forbids the respondents to insist on a laws clause.

On this and the following pages, we have set forth in tabular form, the General Laws which have been attacked in all of the various cases which have been brought involving this issue.

Your Honors will observe that those attack range from zero to 37 plus, but the significant thing is that no two of them ever agreed.

The Board personnel constantly varies its positions as to what's lawful and what's unlawful.

Significantly, however, this chart shows that the great bulk of the General Laws have not been attacked in this or any other proceeding.

Now, we say that in saying that we may not use the laws clause, it is therefore entirely clear that the Board is trying to throw out lawful conduct as well as conduct which they say unlawful.

Your Honors' opinions make it entirely clear.

We think that this is something which the Board may not do.

We have set forth in our briefs in this case and in Number 339, the numerous additional reasons for objecting to the decisions and order of the Board in this case.

For the reasons I have stated here and for the reasons stated in that brief, we urge that the judgment of the court below be reversed.

Thank you.

Chief Justice Earl Warren: Mr. Manoli.

Argument of Dominick L. Manoli

Mr. Dominick L. Manoli: May it please the Court.

The issue which lies at the heart of this case as I have said during my argument in the preceding one is the same as indeed Number 339, namely -- namely whether the savings clause in a contract of this kind does effectively neutralize or suspend the otherwise illegal closed-shop provisions of the General Laws.

Now if we prevail, if the Board should prevail upon that issue, then there is the ancillary question of it with respect to the foreman clause whether the foreman clause which requires that the foreman be a union member, that he is given exclusive authority to hire, whether that clause also is in violation of the statute since as a union member, presumably, he would be required under -- he would be under an obligation to observe the union's laws, the union's General Laws.

Now, the issue in this case arises in a slightly different context and it did in the case preceding this one.

In the case preceding this one, the party did enter into an agreement and the Board found that the agreement and the practice they're under, constituted a closed-shop or an illegal union preferential hiring system.

The Board found that these clauses that they had been accepted, as in the preceding case, would have also violated the closed-shop brand of statute and that therefore, the union by insisting upon these as there was a basis as -- as a term of the contract and going out on strike in support of them, not only violated the statutory duty to bargain in good faith but also violated the statutory prohibition against attempts to cause an employer to discriminate against -- against employees.

Now, the validity of these findings depends upon the legality of the savings clause and the so-called foreman clause.

If the Board is right in holding that the savings clause and the foreman clause do violate the statute, then I think there can be a little disagreement, little serious disagreement that the union's conduct is always a violation of both the statutory duty to bargain in good faith as well as the statutory prohibition against attempts to cause discrimination.

Now, I have already discussed the Board's position with respect to the savings clause, the General Laws Clause and the savings clause there and I shall not repeat what I have already said.

I therefore turn to the foreman clause.

Now, the Second Circuit in the preceding case did not reach this issue because having settled, having resolved the threshold question with respect to the savings clause adversely to the Board.

It said that the ground had been cut out from under the Board's position with respect to the “foreman clause”.

Now, the proposal or the foreman clause here require the foreman to be a union member and vested him exclusively with control over employment hiring in the composing room of these two newspapers.

The -- one of the publishers in this case, I think it is significant.

One of the publishers in this case suggested to the union that union membership be made optional and thereby minimize, thereby minimize the union's control, the union's control over the foreman, but the union refused to -- refused to agree to that proposal.

Now, as a member of the union -- as a member of the union, the foreman would have been under an obligation to respect the union's rules at least to the extent that they were not inconsistent with the specific terms of the contract.

And the ITU General Laws as I have already stated, contained numerous provisions, numerous provisions which call -- which -- which would effectuate or put into effect -- establish closed-shop -- closed-shop conditions.

Now the vesting of exclusive authority or hiring authority in a foreman who had to be a member of the union has been an important aspect of the closed-shop policy of the ITU.

The foreman has served as the watch dog and as well as the -- for the union as well as the enforcer of its closed-shop policy.

And the union, the union has been able to keep tabs on him, has been able to keep tabs on him because it controlled his employment as a foreman.

He could not be a foreman unless he was also a union member.

Now, against this background, against -- against this background, we submit that the Board was entitled to say that the “foreman clause” was an additional device, an additional device for maintaining closed-shop conditions.

In fact, the employers opposed -- opposed the foreman clause precisely for that reason -- precisely for that reason, because they could foresee -- they could foresee that a foreman required to be a union member vested with exclusive hiring authority that it would be only natural -- it would be only natural for him to favor union members and certain the employees, the employees would have no less reason for thinking so.

Now, we say that at the company -- the companies and the union subscribed to this kind of contract having these foreseeable consequences, it would have been just exactly as though they had included closed-shop conditions or union preferential hiring system in the contract itself and that this is a violation of the statute.

Now, one of the arguments that is made here that there is no basis for the Board to draw an inference, that the foreman who is an arm of management in one sense, that he would give precedence -- give precedence to his duty to the union, namely, to prefer union members over his duty to the employer to a hire or fire on the basis of competency alone without regard to union membership or the lack of it.

Now, we don't believe this argument really very scrutiny.

Under this contract, had it been signed, the employer would have divested himself of control over employment.

It would have been turned over to the union.

The employment in the composing room would no longer be a prerogative of the employer, but it would have been primarily a union concern.

The contract itself prescribed no con -- no requirements with respect to the exercise of the foreman's exclusive hiring authority other than the hired journeymen and apprentices.

The foreman was left entirely free.

He was left entirely free to prefer union members and indeed we think he was under a compelling -- compelling -- there were compelling reasons that would have prompted him to prefer union members because his job as a foreman depended upon his maintain -- maintaining himself in the good places of the union, because he could be a foreman only as long as he remains a union member.

Now, it's been suggested here -- it has been suggested here that the employer -- that the union could not grieve over the failure or he could not grieve if the employee -- if the employer disciplined the foreman because it failed to issue instructions -- because he had failed to abide by his instructions.

Now, there were -- there was nothing in the contract -- nothing in the contract which were permitted to the employer to tell this -- to tell this foreman to disregard the union's rules when it came to exercising of his exclusive power to hire and fire because although the contract said was that he was to hire -- he was to hire a journeyman or apprentices.

He was completely free -- completely free to prefer union members and there would have been no basis -- no basis for the employer to complain insofar as the contract was concerned to complain --

When the Court arose, I was addressing myself to the argument that this contract had it been signed, would have contained a provision which prohibited the union from disciplining a foreman for following the written instructions of the employer.

And that this provision would have -- for the safeguard -- the safeguard against the foreman misusing his hiring authority to prefer union members.

I think the short answer to that argument, Your Honor is that under the contract, the employer retained no control with respect to the foreman's exercise of the hiring authority, that he was free to hire -- to exercise that hiring authority to favor union members and there would have been no basis -- no basis since there was no reservation of any right with respect to this -- that matter.

There would have been no basis for the employer to have issued written instructions to the foreman concerning that sort of thing.

Now, this concludes my argument on the foreman clause as a violation of the closed-shop provisions of the statute.

And essentially, as the Court undoubtedly has recognized, our argument with respect to the foreman clause is very much like the argument which underlies our position with respect to the General Savings Clause.

That these provisions create a situation that were foreseeable, the employees will act as though there were closed-shop conditions in effect that they had been put into effect by the parties and that therefore the parties must be held accountable for those foreseeable consequences just as though they have written closed-shop provisions in the agreement.

Before I sit down, however, I do want to address myself to another aspect of this case, an aspect which was not present in the other case because of the posture in which this case arises.

As I said earlier, the employers here did not agree to the proposals.

They resisted and the union went out on strike in support of those demands.

Section 8 (b) (1) (B) of the statute makes it an unfair labor practice for union to restrain or coerce an employer in the choice of representatives for purposes of collective bargaining or the adjustment of grievances.

Now here, the union by virtue of this clause was attempting to restrict the employer's choice with respect to the foreman and the foreman is conceded on all sides.

It would have been management representative for the adjustment of grievances that it's optimistic, the employer's choice of representatives for purposes of grievance to employees who either were union members because that was a necessary qualification of holding the job of foreman, who either were union members or would be -- would be willing to become union members.

Now, we think that this clearly falls within the literal proscription of Section 8 (b) (1) (B) that they were circumscribing the employer's choice of his representatives for purposes of adjusting grievances and as the court below properly held -- properly held this constitutes the violation of that section of the statute.

With respect to the Board's order, I -- I think that the Board's order does not -- does not as suggested here preclude -- preclude the union from incorporating into its contracts, provisions of the General Laws which are valid, and the Board's decisions in these cases have sustained, was well afford adequate guides, adequate guides to the union as to which provisions are to be -- can be included in the contract lawfully, including the contract, and those which may not be.

Thank you.

Chief Justice Earl Warren: Mr. Van Arkel.

Argument of Gerhard P. Van Arkel

Mr. Gerhard P. Van Arkel: The Court please.

What Mr. Manoli has said with reference to the foreman issue makes it necessary, I think, to review somewhat the actual facts with reference to that matter.

That both Worcester and Haverhill had not been for some years any collective agreement in effect.

The employer by his unilateral choice had a union foreman and he delegated to that union foreman exactly the powers which the contract proposals asked that foreman exercise.

Now, the union's proposals, as I have said, called for nondiscriminatory standards of hiring.

What the union was therefore proposing was that though there had been up to that time a complete delegation of authority to the foreman by the employer's unilateral act, the union was proposing in the contracts which it presented the setting up of nondiscriminatory standards for hire which would be, as I have suggested binding on the employer.

This we say is clearly in aid of the statutory purpose.

There was no effort here at all to influence in any way let alone restrain or coerce the employer in his selection of representative for collective bargaining.

The employers of both Haverhill and Worcester has union foreman.

At Haverhill there was not even an objection to this clause being -- going into the agreement.

And in both cases, therefore, the union made no objection to the foreman of whom the employer then had, and therefore there was no effort to influence let alone restrain or coerce the employer in the selection of his representative to represent him.

Now with respect to the laws clause, the uncertainty argument, there is one additional point which I would like to draw to the Court's attention.

The Board's traditional technique and the notices which it directs to be posted, always declare that the parties are not to violate the Act, not to discriminate “except to the extent permitted by Section 8 (a) (3) of the Act.

Now, in that single phrase, the Board subsumes all of the doctrinal law with reference to dual union membership, payment of dues, check off arrangements, and the myriad other subjects with which the Board is dealt.

The Board is entirely satisfied with this kind of an arrangement and we have suggested that the words not in conflict with law in the laws clause are at least as reassuring to employees as technical language such as except to the extent permitted by Section 8 (a) (3).

As Chief Judge Prettyman noted in the Honolulu Star case, the Board twice in a notice to all employees which it required to be posted, directs the company to recite adjuration of certain activities “except to the extent permitted by Section 8 (a) (3) of the Act”.

Counsel pointed the queries whether the latter quoted expression is less confusing than the phrase “not in conflict with law”.

We suggest to Your Honors that in the drafting of a contract, we're within our rights in using a shorthand device, precisely the kind which the Board itself uniformly uses in the notices to employees which it directs to the posting.

Your Honors have had represented to you here in the course of the argument in the Local 357 case that the Mountain Pacific doctrine is applicable solely to exclusively union operated hiring halls.

Now, in the News Syndicate case, the hiring in that case was done by a foreman on the employer's premises.

There was no hiring hall exclusive or non-exclusive.

The Board nevertheless attempted to apply its Mountain Pacific doctrine in that News Syndicate case to a case where there was no kind of hiring hall whatsoever.

And despite the representations which were made in the courts below and in this Court that Mountain Pacific is a doctrine which is limited solely to hiring halls.

We have suggested in our brief that the only conclusion that can be drawn from this is that the Board is unable to distinguish between a foreman and the hiring hall.

I suggest to Your Honors that in the cases you have heard here in the last days, there is one common thread which runs through them all and which we think is dispositive of all.

And that is the question whether or not unions and union members are entitled to the normal presumption of law that if they have a power, they will exercise it lawfully.

The Board's approach in all of these matters is to start with the assumption that if a union is given a power whether it is a power over seniority, over apprenticeships, over methods of hire, over a hiring hall, over a foreman, that those powers will probably be exercised in unlawful fashion, that therefore the Board can assert a right to strike down these powers in the hands of the union.

For example, if we had undertaken to follow the technique which the Board used here in its hiring hall cases, we would have searched the Board's records for 300 or 400 cases in which nonunion foremen have discriminated against nonunion members.

We would then add an elaborate tribute to our own expertise and we'd say that this demonstrates conclusively that the only reason that employers hire nonunion foremen is in order that they may discriminate against union members and hiring.

We would then use this as a basis for asserting that we had the power to forbid the employer to hire a nonunion foreman and having the power to forbid him to do so, we could impose any conditions that we like on the employer's hiring of a nonunion foreman.

Once you start with the presumption that unions and union members are as intent on obeying the law as employers are, then the resting of power in unions to control certain industrial matters presents no further problem.

We say that as citizens, we are entitled to the benefit of this presumption as much as an employer, a nonunion foreman or anyone else.